We’re studying the Human Rights Code in my Employment Law course right now, so here is a straight up ‘simple’ case. An employee refuses to work Sundays because it conflicts with his religious practices, and he’s dismissed. The only odd part of this ruling, in my view, is the Tribunal’s refusal to order damages for lost wages, apparently based on a conclusion that the employment would likely have ended shortly in any event. See what you think of that reasoning.
Facts: Smith v. Network Technical Services (Ontario Human Rights Tribunal, 2013)
The employee was asked during the interview if he could work Sundays. He hesitated, and told the employer that he was religious and taught Sunday school. However, he agreed he could work one or maybe two Sundays a month. He did so for a while, but a few months into the employment, the employer began scheduling him to work three Sundays a month. Fed up, the employee requested that he no longer be scheduled to work Sundays. The employer refused the request, telling the employee that if he couldn’t work Sundays, then he wouldn’t be able to continue working for the employer. When the employee declined to work further Sundays, he was dismissed.
The employer argued that the employee’s refusal to work Sundays was only one of several reasons why the employee was dismissed: the employee had several incidents of discipline or poor performance notations (unspecified in the decision), and had been confrontational with the manager. However, the case law under the Human Rights Code is clear that if any part of the reason why an employee is dismissed is related to a prohibited ground, then that it is enough to ground a Code violation. An intention to discriminate is not required.
The employer breached the Code because it terminated the employee for refusing to work on a religious day, and the employer did not exhaust possibilities for accommodation. The employer’s duty to accommodate religious time off of work was explained with reference to an earlier Tribunal decision called Markovic v. Autocom Manufacturing [which I have discussed before on this blog]
Sometimes the requirements of employment conflict with the ability of employees to practice their religion, often through the establishment of work schedules which, although adopted for valid business reasons, unintentionally impinge on religious practices. There is a significant body of court and tribunal decisions which have dealt with resolving the conflict between the demands of employment and the freedom to practice religion. Many years ago the Supreme Court of Canada, in Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), 1985 CanLII 18 (SCC),  2 S.C.R. 536 (Simpsons-Sears), established that an employer has a duty to take reasonable steps to accommodate an employee who is unable, because of religious beliefs, to work in accordance with the established work schedule. The duty to accommodate requires an employer to look for ways to accommodate the applicant’s need to absent himself from work for religious purposes. The duty to accommodate may thus require the employer to rearrange the applicant’s work so as to enable him to work the hours that would otherwise be available to him, absent his need for religious leave. Whether accommodation up to the point of undue hardship takes the form of make-up assignments or other adjustments to the applicant’s schedule, the goal must be to facilitate an opportunity for the applicant to work his full complement of hours, without encroaching on his religious beliefs.
As I explain to my students, in every Human Rights case, there are two questions to answer:
1. Do the employer’s actions discriminate against the employer, directly or indirectly, on a prohibited ground?
Here, the answer was clearly yes. The reason the employee would not work Sundays was religious observance, and ‘religion’ (or ‘creed’) is a prohibited ground under Section 5 of the Code. This is indirect discrimination, meaning it is a rule or requirement of a job that applies to everyone, but has an adverse impact on some people because of their religious beliefs and observances.
2. If so, does the Code nevertheless allow discrimination in these circumstances?
The Code permits some types of discrimination on prohibited grounds. The employer needs to bring itself under one of the exemptions or defenses to avoid a finding that they have breached the Code. In the case of indirect discrimination on the basis of religion of the sort at issue in this case, the available defines is found in Section 11, which is the “constructive discrimination” section. That section permits indirect discrimination when: (1) the requirement that discriminates “is reasonable and bona fide in the circumstances“, and (2) the employee’s religious needs cannot be “accommodated without undue hardship”.
Here, the employer did not even consider accommodation of the employee’s request for Sunday’s off. Therefore, the employer did not bring itself into the exception in Section 11–the requirement to work Sundays was not “reasonable and bona fide in the circumstances”, since it had not been shown that accommodation would cause undue hardship.
Remedy: A Questionable Refusal to Order Lost Wages Damages?
Section 45.2 of the Code grants the Tribunal broad remedial powers. In this case, the employee was awarded $5000 for injury to dignity, feelings, and self-respect, and the Tribunal ordered the senior management of the company to take the Commission’s on-line human rights training course (“Human Rights 101“).A curious part of the decision is the Tribunal’s refusal to order damages for lost wages. The employee had asked for $5000 in lost wages arising from the dismissal, which the Tribunal found was unlawful. Precise details of the wage loss were not presented as evidence, though presumably this would have been easy enough to calculate, based on some reasonable assessment of how many hours he’d been working up to the date of his illegal dismissal. The employee received employment insurance benefits, and “did not find gainful employment for six months”, according to the evidence presented to the Tribunal. The receipt of EI isn’t a reason to refuse a lost wages order. Lots of employees who receive lost wages orders from administrative tribunals have received EI. This results in an overpayment, and the EI fund might have to be reimbursed. Nothing unusual about that.
However, the Tribunal here refuses to order damages for lost wages, finding that: “the applicant’s employment relationship with the respondent would likely have ended soon after the actual termination of it”, because the employee had performance issues and was in any event unhappy with the job. So, by finding that the employee would either have quit or been fired at some point in the near future anyways, the Tribunal refuses to order any damages for lost wages. The logic is that the employment relationship would have come to an end in any event, legally, before the employee’s next shift.
Questions for Discussion
1. What sort of accommodation should the employer have considered or proposed to avoid violating the Code?
2. What do you think of the Tribunal’s reasons for refusing to order back wages in its remedial order?